As the Guardian reported, the court found that “the government has not shown a stay is necessary to avoid irreparable injury.” In particular, its ruling noted that “the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all.”

In a press release, the Constitution Project (a Washington-Based non-profit organization whose goal is to build bipartisan consensus on significant constitutional and legal questions) noted that the court rejected the Trump administration’s argument that “the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” and stated, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The Constitution Project also noted that the court added that Fifth Amendment protection against “deprivation of life, liberty, or property, without due process of law” applies to everyone within the United States, not just citizens.

The Guardian also noted that “the federal government can now ask the Supreme Court to review the Ninth Circuit’s ruling,” but added that the judges’ “unanimous ruling suggests that the Trump administration will face an uphill battle.”

Trump himself responded with predictable fury, tweeting, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

The Guardian also noted how the judges’ ruling was “scathing in parts, essentially calling into question the government’s credibility,” and proceeded to explain how, with reference to the confusion regarding permanent US residents who were caught up in the travel ban, the judges pointed out that they “cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents.”

The judges also noted that “in light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

Also in the opinion, the Guardian noted, “the judges wrote that ‘it is well established that evidence of purpose’ from a case’s context can be used in court – meaning that the states can cite Trump’s claims and tweets, for instance about his preference for Christians and call for a ‘complete and total shutdown of Muslims,’ as admissible evidence.”

In other words, “Trump’s long history of controversial statements, the court suggested, can therefore be used as legal weapons against him,” which is very good news indeed, considering how irresponsible Trump is in his tweets.

Below, I’m posting a statement by 29 experts from the fields of politics, law and the military, who are part of The Constitution Project’s Liberty and Security Committee and its Task Force on Detainee Treatment. The experts criticize the immigration ban and other recent executive orders, noting that they “threaten to harm fundamental constitutional rights, American values, and innocent people, without any evidence that they will benefit national security.”

As well as the immigration ban, the statement criticizes the executive order targeting undocumented people for deportation, which also calls for the publication of weekly lists of “criminal actions committed by aliens,” another approving the creation of a wall between the US and Mexico, which also calls for the construction of detention facilities, and a draft executive order calling for the prison at Guantanamo Bay to stay open, and for new prisoners to be sent there, which I have written about here and here.

Statement on Recent Executive Orders
By 29 experts from The Constitution Project’s Liberty and Security Committee and its Task Force on Detainee Treatment

In December 2015, in the wake of a series of horrific terrorist attacks around the world, The Constitution Project’s Liberty and Security Committee issued a statement asking Americans, and particularly their political leadership, to respond in a way that upheld our laws and values. We asked that they consider proposals calmly and deliberately; uphold the right to dissent and the free exercise of religion; resist attempts to target vulnerable groups; and act consistently with the Constitution at all times.

An unprecedented series of executive orders recently signed by President Trump, or whose proposed text has been published in the press, violates all of these core principles, in the name of protecting national security. This occurred almost immediately upon President Trump taking office, rather than in reaction to a known, specific terrorist threat or attack on the United States.

Executive Order 13,769, issued on January 27, 2017, bans all nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for at least 90 days, forbids the admission of Syrian refugees into the United States indefinitely, and suspends all U.S. refugee admissions for at least 120 days. The order is misleadingly titled “Protecting the Nation from Foreign Terrorist Entry Into the United States”; in fact, it primarily targets on the basis of religion and nationality individuals whom the U.S. government has already determined not to be a threat.

Two other sweeping executive orders regarding immigration were issued on January 25. Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” would overhaul the immigration enforcement system in a way that invites abuse. Instead of prioritizing removal of individuals convicted of serious crimes, the order requires the Secretary of Homeland Security to give equal priority to removing individuals convicted of, charged with, or accused of minor offenses, or deemed a threat by any immigration officer. In effect, this empowers federal and state law enforcement officials to designate any undocumented person as a criminal. The order also instructs the Department of Homeland Security to publish weekly lists of “criminal actions committed by aliens,” and tells agencies to deny non-U.S. persons the protections of the Privacy Act. These steps are particularly disturbing given recent reports of increasing hate crimes and threats against minorities.

Executive Order 13,767, “Border Security and Immigration Enforcement,” directs the construction of a physical wall along the United States’ border with Mexico. Moreover, it requires the Secretary of Homeland Security to construct detention facilities and detain all individuals facing removal proceedings. At a time when 40,000 people are already detained and immigration courts are facing backlogs so severe that hearings can be postponed for years, this carries a steep fiscal cost and an even higher humanitarian cost on the men, women, and children subjected to it. It would seriously impede individuals’ ability to obtain legal representation or meaningful court review of any claim for relief from removal.

The press has published several versions of another draft executive order issued in the name of national security. The first version would have withdrawn the prohibition on the CIA operating overseas prisons, expanded military commissions, and instructed the Secretary of Defense to end all transfers from Guantanamo and prepare to send newly captured detainees there. The second version removes all reference to interrogation policies and military commissions, but maintains the requirement that the Defense Secretary continue to use Guantanamo, including for new captures.8

It is unclear what, if any, legal and policy review these orders received before they were signed. It is clear that they threaten to harm fundamental constitutional rights, American values, and innocent people, without any evidence that they will benefit national security.

We call upon President Trump to withdraw the executive orders entirely, or suspend them pending a thorough legal and policy review by all relevant departments and agencies to address these concerns. We also call upon him to respect any court decisions limiting or overturning his executive orders, and refrain from attacks upon judges’ integrity or independence. We call upon him to act with more deliberation and care before taking future executive action, and avoid actions that target minorities, chill dissent, or threaten other core constitutional guarantees.

We ask Congress to use its lawmaking, appropriations, oversight, and advice-and-consent powers on a bipartisan basis to enforce our constitutional safeguards and protect individuals’ fundamental rights.

We ask the courts to defend their independent constitutional role and act as a check on the executive, as they have begun to do in the context of the seven-country travel ban.

Finally, we call on individuals employed by executive agencies to uphold their responsibility faithfully to execute our laws at all times, and comply fully and promptly with all court orders.

David Cole, National Legal Director, American Civil Liberties Union; Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center

Phillip Cooper, Professor of Public Administration, Mark O. Hatfield School of Government, Portland State University

John W. Dean, Counsel to President Richard Nixon; former Goldwater Chair of American Institutions at Arizona State University

Mickey Edwards, Vice President, Aspen Institute; Lecturer at the Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress (R-OK) and Chairman of the House Republican Policy Committee

David Irvine, Brigadier General (Ret.), U.S. Army; former strategic intelligence officer, U.S. Army Reserve; taught prisoner-of-war interrogation for 18 years at the Sixth U.S. Army Intelligence School; former Republican state legislator (Utah)

James R. Jones, former U.S. Ambassador to Mexico; former Member of Congress (D-OK)

Christopher Kelley, Lecturer in Political Science, Miami University (OH)

Claudia J. Kennedy, Lieutenant General (Ret.) U.S. Army; former Deputy Chief of Staff for Intelligence at Headquarters, Department of the Military

Thomas R. Pickering, former Under Secretary of State for Political Affairs, 1997-2000; United States Ambassador and Representative to the United Nations, 1989-1992; former Ambassador to the Russian Federation, India, Israel, El Salvador, Nigeria, and Jordan

Paul R. Pillar, Nonresident Senior Fellow, Center for Security Studies, Georgetown University; Intelligence Officer (positions included Deputy Chief of DCI Counterterrorist Center, National Intelligence Officer for the Near East and South Asia, and Executive Assistant to the Director of Central Intelligence), Central Intelligence Agency and National Intelligence Council, 1977-2005

David Skaggs, Adjunct Professor of Law, University of Colorado Law School; former Member of Congress (D-CO) and Member of the Appropriations Committee and Permanent Select Committee on Intelligence

Nancy Soderberg, President and CEO, Soderberg Global Solutions; Distinguished Visiting Scholar, University of North Florida; President, U.S. Connect Fund, 2009-2013

Neal R. Sonnett, Member, ABA Board of Governors, 2009-2012; Chair, American Bar Association Task Force on Treatment of Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against Terrorism; former United States Attorney and Chief of Criminal Division for the Southern District of Florida; former President, National Association of Criminal Defense Lawyers

Gerald E. Thomson, MD, Professor of Medicine Emeritus, Columbia University; former President, American College of Physicians

Don Wallace, Chairman, International Law Institute, Georgetown University Law Center

John W. Whitehead, President, The Rutherford Institute

Lawrence B. Wilkerson, Col. (Ret.) U.S. Army; Distinguished Visiting Professor of Government at the College of William and Mary; Former Chief of Staff to Secretary of State Colin Powell

36 Responses

Here’s my new article, looking at the latest blow to Donald Trump’s disgraceful immigration ban, as a panel of three judges in the 9th Circuit Court of Appeals in California have upheld the stay on the travel ban that was issued by Washington State Judge James Robart five days ago. Trump has said he will take the case to the Supreme Court, but it doesn’t look promising for his racist, unconstitutional ban. I also post a statement opposing the immigration ban and other executive orders – about the Mexican wall and immigration deportation – and the draft executive order about Guantanamo, written by 29 experts working with the Constitution Project in Washington, D.C.

While waiting for some work on my car today, I was listening to Fox News, the only channel this right wing town considers watchable. Their experts who did seem to have good qualifications insisted that the 9th Circuit was wrong when it wrote that such an Executive Order, such a decision by the President, is reviewable and insisted the court did not consider the statutory authority at issue. I read the opinion and disagree. The court certainly addressed the issue of reviewability and cited cases to the opposite of the argument by the Trump Administration.

Yes, it’s ridiculous, Betty. Even if there genuinely was a national emergency, this kind of blanket ban would be unacceptable, but as it is there’s no emergency at all. It’s all being invented by Trump. There are, basically, no incidents of terrorism involving anyone from the seven banned countries.

Andy, Trump may find himself in legal trouble again. As the 9th Circuit Court pointed out in its decision, these people all have the right to due process. This may become too cumbersome for Trump’s administration to handle and we may find detention camps filled to bursting with immigrants trapped in legal limbo.

I really hope not, Mary. I’m pretty sure the courts will keep shooting him down when they can, but I suppose it’s a question of what the basis is for legal challenges that can be mounted against his domestic policies and how effectively rulings can prevent his actions.

He and his people so far seem to not know anything about existing laws and policies. Trump made the mistake of disregarding checks and balances, and he took the Nixonian view that he could do as he liked, that being POTUS gave him total irrrefutable control over who comes into the country. He may try to assert such authority over persons who are non-citizens inside our borders.

I imagine being told he could not have total control over who comes into the country didn’t sit well with him. I think he will start harassing Muslims, beginning with mosques and Islamic centers, obtaining lists of people and other demographic information. Again, he will get slapped down, but not before he accomplishes the fearmongering which is his true objective.

Well, yes, the fearmongering must be working well already, Mary – a blanket ban on seven nations tends to do that, which is what’s so offensive about it. I’m pretty sure that here in the UK the racists have been looking at the immigration ban and hoping he gets away with it so that it can be replicated here.

Trump is also fearmongering inside the US, insisting that the murder rate is higher than it’s ever been in 46 years, when it is the opposite. Making people afraid is a fascist ploy whose purpose is to create a malleable, submissive populace.

And according to a poll cited by AOL, Mary, “51 percent of Trump supporters say the nonexistent massacre shows why the controversial ban is needed to keep America safe”: https://www.aol.com/article/news/2017/02/10/poll-trump-supporters-say-fake-bowling-green-massacre-justifi/21711578/
Too many people now defend their opinions as true, and are impervious to actual facts. It’s a process I’ve seen developing over the last 20 years or so – first on TV, with ordinary people being randomly asked for their opinions about stories in the news, but without any effort being made to ascertain whether they might be qualified to have an opinion, and more recently with the echo chambers created by social media and by search engines’ algorithms, and by fake news (above and beyond the fake news served up regularly by parts of the mainstream media), and it is troubling because history suggests to us that angry, one-sided views can easily be turned into violence against whoever is perceived to be the dangerous “other,” as happened in Nazi Germany.

He is a dangerous, toxic narcissist, as Hitler was. But luckily, he lacks charisma. Once he begins to disappoint the voters in a substantial way, his influence will wane. The GOP see him as a means to an end, and they will easily replace him when the time comes.

Yes, I agree about Trump being an essentially uncharismatic narcissist, Mary, but I can only hope that he takes the Republicans’ credibility with him when/if he leaves/falls/is pushed. The entire party has no adequate answers to the problems we face at this time – not that the Democrats do either, but the Republicans need restraining, while the Democrats need to find a new direction – one that Bernie Sanders hinted at, but that the party’s leaders chose to ignore. To be honest, variations on this problems are being played out across the West, with the right in power but more destructive than ever (and largely backed by extremely corrupt corporate media), and the left marginalized. Troubling times.

And here’s the sad news that a majority of people surveyed in eight out of ten European countries by independent UK think tank Chatham House would impose an even more sweeping immigration ban than the one Trump is struggling with. Majorities agreed with the statement, “All further migration from mainly Muslim countries should be stopped,” in Austria, Belgium, France, Germany, Greece, Hungary, Italy and Poland. It was only in Spain and the UK that there wasn’t a majority: http://www.huffingtonpost.com/entry/european-countries-trump-muslim-ban_us_589cbeb0e4b0c1284f2b4841

I am not all that surprised because Europe has taken far more refugees than the US, and there have been terrorist acts in several places in France, Germany and Turkey. What is dubious overall is the fear – America has not had any major attacks in years, and how does one balance this against the thousands and thousands of refugees and other immigrants who are good people? If we are going to keep the world in a state of perpetual war, we cannot turn our backs on the refugees.

Yes, the impact of the attacks in Europe has been horrible, Mary, and it’s obvious that it’s directly influenced Trump and those of his supporters who are burning with an outrageous Islamophobia. The attacks have had a very negative impact here in Europe too. So sad that al-Qaeda succeeded in undermining the West after 9/11, getting us to abandon our values, and that Isis has achieved the same thing with the European attacks.

I think it has been worse in America. Susan Faludi’s book “Terror Dream” explored the impact 9/11 had on the national psyche quite well. She writes about how America’s longstanding fear of a brown-skinned enemy was awakened by 9/11. I think the history of racism in America is personified in its fear of immigrants, refugees and Muslims. Although the US has a big problem with white nationalist/supremacist groups, they go unacknowledged in the list of “terrorist threats” precisely because they are white. And when people like Dylann Roof attack persons of color, they are never called “terrorists.”

Yes, and there’s the legacy of slavery as well, Mary, adding to those white fears of the “other.” In the UK, I’d say that it’s generally been the case that the worst abuses took place in other countries as part of our imperial history, giving it some distance, and, in addition, there’s been a concerted effort by the establishment to pretend that we had a “good” empire. Because of this distance, I think, we’ve generally kept the worst racism at bay, but I’m worried now that the renewed racism that’s been building up over the last 15 years or so is a virulent new kind, and that it’s going to be extremely difficult to overcome. I honestly never saw this coming even five years ago, and that suggests to me that the main trigger for all of this is the global crash of 2008 and the economic destruction it left in its wake.

For America it was, of course, 9/11. And the subsequent exploitation of that tragic event by politicians who recognize that fear and grief are effective tools for controlling the political climate. This is why I have mixed feelings about the annual commemorations, the memorials, etc. We are not being allowed to heal, and this crass exploitation of this tragedy keeps the wounds fresh.

Yes, I agree, Mary. 9/11 is exploited as something commemorated every year, rather than something to recover from. I heard the most extraordinary account of released Guantanamo torture victim Mohamedou Ould Slahi from his lawyer Larry Siems, who said that Mohamedou has forgiven everyone who contributed to his torture and abuse, because otherwise, he realized, he would not be able to be free.

It goes both ways, doesn’t it? I heard this from Iraqi refugees also. Instead of forgiving and looking ahead, Americans dwell on tragedies as a way of “honoring the dead,” as if letting the tragedy remain in the past we are betraying the fallen. We should not be having ceremonies every year. We are not the only people who have suffered from terrorist attacks, and sadly, we don’t care unless the victims are westerners like us. This is how Trump has been able to add fuel to the fire in arguing against bringing more refugees into the US. Europe is “a mess,” he says, because the refugees are being blamed for terrorist attacks and overall increased crimes against Europeans.

It seems to me, Mary, that the attack in November 2015 in Paris, in particular, allowed the fearmongers to implement “War on Terror 2.0”, when what we really needed was a sense of perspective, like we had in London in July 2005, when everyone just got on with their lives as quickly as possible. It seems to me that far too many people are becoming much more susceptible to hysteria these days.

Yes because it’s a political football again. Americans, living on the big Turtle Island, are very safe, yet they have been convinced that they are entitled to perfect safety in a world where it isn’t possible. We allow ourselves to be surveilled, watched, registered, monitored, and are routinely harassed at airports for the sake of “security.” I was shocked during my return trip from Egypt, to have to show my passport and pass through screening when going from one secure area to another. We are taught to be afraid, and we’re good at it.

I was watching ‘Bullitt’ the other night, Mary – the famous Steve McQueen movie from 1968, and I was struck by the absence of surveillance – pre-cell phone movies tend to reveal how free we all used to be, and in addition there was a scene at an airport where there was, of course, minimal security – just a passport check. The control now is hideous and unnecessary, but people have been cowed into believing it’s necessary, as you note, and this conditioning to accept a state of permanent fear actually runs through countless people’s lives as a kind of permanent presence, with disturbing psychic ramifications for society as a whole. We need some proper grown-ups in charge, who can make sensible risk assessments …

The remaining fools supporting Trump appear to be the people who are either the most afraid or the most racist, or both. He has convinced them they’re in danger from those brown skinned people who are coming into the country to rape the women and impose Sharia law.

Of the 62,985,106 people who voted for him, Mary, I hope those you’re referring to end up being only a fraction of them. It is, however, genuinely troubling to me that the number of people who voted for Trump is about the same as the entire population of the UK.

It should be. He never should have gotten past his first month of campaigning. Either Bernie Sanders or Hillary Clinton should have destroyed him. Hillary had too many enemies, but she also had more Washington insider friends than Sanders. Regardless, how could such a grotesque cartoon have been able to win? I don’t think there is a simple answer, but there weren’t enough people disgusted by Trump, and that’s frightening.

Yes, it really is, Mary. His misogyny was on open display, his shady business dealings were not difficult to discover. As for being unable to complete a sentence, I’m sure that endeared him to many, many people, and cannot but regard that as a sign of degeneracy in our culture as a whole. As the idiotic pro-Brexit Tory MP Michael Gove said, in putting down those opposed to Brexit here last year, “The people have had enough of experts.” Oh, so we’re not only screwed, but we’re celebrating how screwed we are. It seems to me that perhaps we deserve to be invaded and conquered by people who value intelligence.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington